"Sarath Silva and MR’s third term"


 by Sarath N. Silva

I write to you in response to the Article bearing the above title published in the "Political Watch" Column of The Sunday Island of August 24, 2014. The Article claims to be a response to an interview of mine published in the IridaLankadeepa of August 17. I raised a strictly legal issue whether the incumbent President, who has been twice elected to office, is qualified in law to be elected to office for another term. If he is not so qualified, whether he is entitled in terms of Article 31(3(a)(i) of the Constitution to direct the Commissioner of Elections to hold a premature Presidential election after the expiration of four years in office, on the basis that he is eligible to hold office for a further term.

I have, upon a clear analysis of the law expressed the view that the incumbent President who has been elected to office twice is disqualified from being elected again and that he is not entitled to call for a premature election. Notwithstanding that, if the President issues a Proclamation directing that an election be held, that I would institute proceedings in the Supreme Court to restrain the Commissioner of Elections from holding an illegal premature election. I have clearly stated that the President is entitled to continue in office till November 2016 and of course the Commissioner will hold the election prior to that day. On this expression of a clear opinion the columnist has stated,

"Silva is really going for the jugular and wants to throw the spanner into the works by blocking the next Presidential election with litigation"

Far from it, I want a Presidential Election to be held in due time according to the Constitution.

The issue I raised is based on Article 31(2) of the Constitution which reads as follows:

"No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People"

The basic Article of the Constitution with regard to the exercise of the Sovereignty of the People is Article 4. The Supreme Court has repeatedly held that any law inconsistent with this Article has to be approved by the People at a Referendum. Article 4(b) reads as follows:

"The executive power of the People including the defence of Sri Lanka, shall be exercised by, the President of the Republic elected by the People."

If we relate the disqualification in Article 31(2) to the basic Article 4(b), any person twice elected to the office of President is disqualified from exercising the executive power of the People pursuant to a future election.

This is a very serious disqualification. That is why those who framed the Constitution attached the disqualification to a person at the earliest possible stage in time. Please note that the person becomes thus disqualified immediately upon election, well before taking an oath and assuming office. Certainly before doing any official act.

This is a unique disqualification in the Constitution being the Supreme Law of the Republic. Only three persons have become thus disqualified. The first was President J.R. Jayawardene, the second was President Chandrika Kumaratunga and the third was President MahindaRajapaksa. I used the past tense intentionally because President MahindaRajapaksa became disqualified the day he was elected, on January 27, 2010. President Jayawardene gracefully abided by the unique disqualification imposed by the Supreme Law of the Republic and bowed out of office. So did President Kumaratunga. The third thought otherwise, that he will get past this disqualification, using the power bestowed on him by a trusting People, to whom he solemnly promised that he would abolish the Executive Presidency.

Having been elected on that solemn promise, President Rajapaksa lost no time in initiating the 18th Amendment to the Constitution in the Cabinet of Ministers of which he is the head. The 18th Amendment is not for the benefit of the People and the Country. It is entirely for the benefit of President Rajapaksa. It seeks on the one hand to entrench him in power for as long as he pleases and on the other to restore the harsh and oppressive powers of the executive President that had been brought under essential checks and controls by the 17thAmendment through the mechanism of the Constitutional Council, a Body within the purview of Parliament. The 17thAmendment was the most progressive piece of legislation under the 1978 Constitution which was adopted unanimously in Parliament, with even Rajapaksa voting for it. Thus what happened in reality is just the opposite of what was promised to the People.

We are concerned here only with the first aspect. Clause 2 of the 18th Amendment merely states that paragraph (2) of Article 31 is repealed. President Rajapaksa appears to have thought that by virtue of this repeal, he can be elected as President for any number of times as he pleases. But fortunately for the country he did not comprehend the precise way in which the disqualification operated under Article 31(2). That, it took effect immediately upon being elected to office for the second term on January 27, 2010. The repeal of Article 31(2) takes effect only when the Speaker certified the 18th Amendment on September 9, 2010.

The columnist has cited several cases from the United States and contended that the Amendment has retrospective operation. Those judgments merely establish that the legislature can enact laws that have retrospective effect and if so enacted the Courts will give it such retrospective effect. The columnist need not have delved into US Case Law.

Article of 75 of our Constitution states clearly that "Parliament shall have power to make laws, including laws having retrospective effect". In terms of Article 80(1) a Bill becomes law when certified by the Speaker. It becomes operative from that date onwards. Laws are ordinarily prospective in operation. If it is to be retrospective in operation the Bill should state clearly from what date it becomes operative.

In this instance the repealed of Article 31(2) took effect on September 9, 2010. The disqualification of President Rajapaksa had taken effect eight months ago. Hypothetically, if the Parliament intended to remove the disqualification of President Rajapaksa the words "Article 31(2) is repealed with effect from January 26, 2010 would have had to be included. Being more generous, if Parliament intended to remove the disqualification of President Kumaratunga as well, the repeal would have had to come into effect on December 21, 1999. Or, it would have stated that Article 31(2) is deemed never to have been enacted and even President Jayawardene could be have become qualified posthumously. All hypothetical situations cited by me would make a mockery of the legislative process. The firm position is that a repeal of a provision of the Constitution cannot have retrospective effect. The Constitution is the Supreme Law of the Republic and what has taken effect in terms of the Supreme Law cannot be taken away.

With due respect to the Columnist, I would reserve further elucidation of this matter to a future occasion.

Since the Article in question is a response to my interview published in the Irida Lankadeepa, I am copying this to its sister newspaper, The Sunday Times.

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